Feldman: Death penalty cases are personal for justices

The only way the death penalty will be struck down soon is if Justice Kennedy thinks it should be

With the long black robes, red velvet curtain and secret conference room, the U.S. Supreme Court can seem like a pretty weird place. But the court is never weirder than when the death penalty is being discussed, as it was in Wednesday's oral arguments. On the surface, the justices must decide whether co-defendants can have their sentences determined in a single hearing, and whether a jury must be told that factors mitigating against a capital sentence don't need to be proved beyond reasonable doubt. But underneath these technical legal issues, something more profound is at stake: the immediate, personal involvement of the nine justices in the intentional killing of human beings.

Because the court thinks "death is different," its usual rules for choosing which cases to hear don't apply. It considers cases where there's no split of authority among the courts of appeal or among the states, and it corrects errors that it thinks were made by the courts below. More than that, the court gets into the guts of how the death penalty is determined and administered, making it the de facto supervisor of what Justice Harry Blackmun memorably called the "machinery of death."

The court doesn't hear every death penalty appeal, but the clerks and justices do in practice review every legal argument made by desperate death row inmates and their lawyers as their dates of execution draw near. For decades, the court has employed a special "death clerk," not one of the justices' clerks who typically serve for a year, but a permanent staff member who has developed an expertise in the arcana of state and federal death penalty law. The death clerk monitors the appeals, makes sure the justices vote on them in an orderly fashion, and communicates the responses back to the states and the lawyers.

Crack-of-dawn execution

Although the court prefers otherwise, sometimes all this happens in the dead of night, in anticipation of a crack-of-dawn execution. If it's after hours, each justice leaves a law clerk behind in chambers to monitor developments and communicate with his or her boss at home. I can tell you I've never experienced anything eerier than staying up to the small hours in the darkened, almost-empty Supreme Court building, waiting for someone to die in Texas or Arizona or Oklahoma so that I could go home.

I mention the detail to suggest how closely the justices are involved in administering the death penalty - and how that experience becomes part of the justices' professional routine. There are many fewer executions now than there were in the late 1990s, when I clerked, but reduced numbers don't, I think, reduce the psychological impact - possibly the reverse.

Public attention tends to focus on whether the court will strike down the death penalty as cruel and unusual, which it did in effect from 1972 to 1976. The day-to-day death penalty jurisprudence isn't as legally dramatic. But the right answer often depends on what you think about the death penalty writ large.

Sentencing co-defendants

Take the question of whether it's fair to sentence co-defendants in the same proceeding. The Carr brothers, whose case is before the court, were convicted of a vicious crime spree in which they killed five people and almost killed a sixth. Reginald, the older brother, seems to have been leader of the two. Jonathan, the younger brother, presented evidence at trial that made Reginald look worse than he - in the hopes of getting the jury to sympathize with him as a follower who didn't deserve the death penalty. Reginald's lawyers have argued that this was unjust. Jonathan's lawyers, for that matter, argue that sentencing him alongside his brother must've prejudiced the jury against him.

If you oppose the death penalty, you'll probably think the answer is pretty obvious: Each man bears independent guilt, so each man should get a separate sentencing hearing.

But if you think the death penalty is warranted, you might conclude that there's nothing wrong with sentencing murderers together for crimes they committed together. Criminals are tried together and sentenced together all the time for joint crimes. Indeed, a jury that considered the crimes of both Carrs and their punishments could arguably do it better in a single proceeding than in two separate ones.

Two justices, Stephen Breyer and Ruth Bader Ginsburg, made headlines last term by saying they consider the death penalty unconstitutional in all circumstances. The court's two younger liberals, Sonya Sotomayor and Elena Kagan, kept their powder dry, declining to join their older colleagues' position at this comparatively early stage in their Supreme Court tenures.

The only way the death penalty will be struck down in the foreseeable future is if Justice Anthony Kennedy thinks it should be. Kennedy doesn't like to be pigeonholed as a bleeding- heart liberal, and given his landmark liberal vote for gay marriage in June, it's very unlikely that he wants to become a death penalty pioneer, at least for now.

That leaves the court with skirmishes over procedure that stand in for the real question: How much can the justices tolerate their intimate connection to death? For now, the answer is that they can. Dostoevsky, no stranger to capital punishment, said it best: "Man grows used to everything, the scoundrel!"

Feldman, a Bloomberg View columnist, is a professor of constitutional and international law at Harvard and the author of six books, most recently "Cool War: The Future of Global Competition."